New Civil Rights Decision Involving Child Welfare: Kirkpatrick v. County of Washoe

On July 10, 2015, the Ninth Circuit found that a caseworker and a supervisor could be held liable for removing a two-day-old newborn from its mother in the hospital without a court order.  Even though the mother had a drug problem and the defendants had not been trained in the law requiring a court order, they were not entitled to qualified immunity.

You can find a copy of the decision HERE.

US Supreme Court: “Children’s Reports of Child Abuse are Non-Testimonial and Not Subject to Confrontation.”

On June 18, 2015, the Supreme Court of the United States decided the case of Ohio v. Clark.  Because this case has implications for attorneys practicing child welfare law, Grant Dickinson of the PDA has created the following summary:

Clark had sent his girlfriend away to prostitute and while she was gone cared for her young children. Her son reported to a teacher that Clark had abused him. At trial Clark unsuccessfully sought to exclude the child’s statements to the teacher because the admission of the statement violated his right confront the witness against him. The trial court denied his motion and he was convicted. The Ohio state Supreme Court reversed the conviction. Ohio appealed.

The Supreme Court reversed the ruling of the Ohio Supreme Court finding that the child’s statements to the teacher were not testimonial in nature and the primary purpose of the communication was not to establish or prove past events for later prosecution; therefore not subject to the confrontation clause of the sixth amendment. This was reinforced by the ongoing emergency perceived by school employees and whether they could release the child to Clark at the end of the day. The Court further stated, “statements by very young children will rarely, if ever, implicate the Confrontation Clause.”

How this applies to child welfare. We are often confronted with statements of children being used against our clients. This newest ruling weakens our grasp at the confrontation clause as a way to exclude such statements. This case coupled with Utah statute U.C.A. 78A-6-115(6), which allows for child’s statements to trusted adults as exceptions to the prohibition against hearsay, limit our ability to cross examine children thus allowing children’s hearsay statements as testimony to be used against our clients.

Full Opinion Available at http://www.supremecourt.gov/opinions/14pdf/13-1352_ed9l.pdf

New York Court Finds Mental Illness Does Not Constitute Neglect

A New York appeal court recently held that the state had failed to prove by a preponderance of evidence that there was a connection between a mother's mental illness and actual or potential harm to the child.  You can find the full opinion HERE.

New York Court Grants New Trial in Case of Baby Sitter Accused of Shaken Baby Syndrome

On December 16, 2014, a New York court overturned a murder conviction for Shaken Baby Syndrome.

While in the care of a day care provider a two and a half year old died after falling from a bench.  The day care provider was convicted of murder under the theory of Shaken Baby Syndrome.  A post-conviction motion asked the court for a new trial under the theory that new scientific research regarding the characteristics of Shaken Baby Syndrome undermined the reliability of the verdict.  The court agreed with the defense that a child can, in fact, die from a "short fall" and ordered a new trial based on the newly discovered evidence (i.e. advances in scientific research).

You can find a copy of the opinion HERE.

NJ Justices say Methadone Treatment While Pregnant Not Child Abuse

On December 22, 2014, the New Jersey Supreme Court ruled that going through a methadone treatment program while pregnant, even when the newborn suffers from withdrawal symptoms, does not constitute child abuse.

The unanimous court overruled two lower court decisions that looked only at the harm to the child without considering whether the mother's actions were reasonable.  The court wrote: "We hold that, absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed health care professional to whom she has made full disclosure," 

You can find a full copy of the opinion HERE.

Utah Supreme Court Denies Biological Father's Appeal for Child Custody

On November 4, 2014, the Utah Supreme Court issued an opinion in Boulden v. Doe, denying a biological father's petition to intervene in the adoption proceedings of his now three-year-old child for "failing to preserve his legal rights as a father by filing a paternity affidavit within the time prescribed by Utah Code section 78B6-121(3)."

You can read the entire opinion HERE.

KSL.com also reported the story HERE.

The Presumption that a Parent Acts in the Child's Best Interest

We recently did a little research for one of our members on the parental presumption.  We thought we would share the case law here.

Hutchinson v. Hutchinson, 649 P.2d 38 (1982)

The parental presumption in favor of custody been placed in the biological parents can be rebutted only by evidence establishing that a particular parent at a particular time generally lacks all three of the characteristics that gave rise to the presumption: (1) that no strong mutual bond exists, (2) that the parent has not demonstrated a willingness to sacrifice his or her own interest in welfare for the child's, and (3) that the parent lacks sympathy for an understanding of the child that is characteristic of parents generally.  If a nonparent can establish these elements, the nonparent is placed on equal ground with a natural parent and custody decisions will be based on the best interests of the child. The presumption does not apply to a parent who would be subject to the termination of all parental rights due to unfitness, abandonment, or substantial neglect.

In re K.P., 2009 UT App 244

Hutchinson factors generally inapplicable in juvenile court where the parent has been adjudicated as to abuse or neglect, because adjudication itself rebuts parental presumption, rendering Hutchinson factors unnecessary.

In re J.L.V., 958 P.2d 943 (1998)

Once the Juvenile Court has adjudicated dependency, neglect, or abuse, the Hutchison factors do not apply and custody decisions are made on a best interests basis.  “The law does not presume that it is in a child's best interest to be in the custody of the child's parent when the parent has been found by clear and convincing evidence to have neglected or abuse the child when the child is dependent.”

Troxel v. Granville, 530 U.S. 57, 66 (2000).

Parents presumed to act in child’s best interests.

Parham v. J.R., 442 U.S. 584, 602 (1979)

Parents’ decisions presumed to be in child’s best interest.

Meyer v. Nebraska; Pierce v. Society of Sisters; Prince v. Massachusetts

Parents have a fundamental liberty interest in directing the upbringing of their children.

Michigan Court Finds One-Parent Doctrine Unconstitutional

Another case came down this week in support of parental rights.  This time in Michigan.  You can find a syllabus of the case HERE.

The Michigan Supreme Court found that a procedure known as the one-parent doctrine infringed on the rights of a non-adjudicated parent.  The one-doctrine provides that if the court's jurisdiction has been established by the adjudication of one parent to a child, then the court can enter dispositional orders affecting the parent rights of both parents.  In this case only the mother had been adjudicated as unfit, but the father was required to comply with a service plan before the children were returned to his custody.  The Supreme Court found that due process requires that a parent be adjudicated as unfit before the state can infringe on the parent's constitutionally protected parent-child relationship.

New Jersey Court Finds Incarceration Alone Insufficient to Terminate Parental Rights.

Yesterday a New Jersey court found that a prison term alone is insufficient to terminate parental rights.  You can read a syllabus of the decision HERE.